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Court temporarily halts subpoenas for internal documents

From the Complete coverage of Montana's ongoing legislative, judicial conflict series
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The Montana Supreme Court on Friday issued a unanimous order putting a temporary halt on the wave of legislative subpoenas calling for the court's internal documents by Monday.

Republican lawmakers in the last week have sought to investigate the Supreme Court on matters including email retention and using state computers to coordinate lobbying efforts. Democrats, in response to legislation and the inquiry into the judiciary, have accused Republicans of undermining the integrity of the courts.

The chief justice on Friday also sent a letter to Republican legislative leadership, seeking a more congenial route as the process moves forward.

The unprecedented public clash between the two branches arose from the revelation of an internal judges' poll conducted in January on Senate Bill 140, which eliminated the Judicial Nomination Commission and expanded the governor's power to appoint judges in the case of vacancies. When Republican Gov. Greg Gianforte signed the bill into law in March, a legal challenge to the law followed less than 24 hours later later. Filings in that ca legislative subpoenas se showed one of the district court judges to preside over the case had "adamantly opposed" the law when it was in the legislative process.

Republicans in the House and Senate who have formed a committee to investigate the judiciary issued subpoenas Thursday for all seven justices and Supreme Court Administrator Beth McLaughlin, who conducted the polling through her and the judges' state email accounts. The high court already quashed a legislative subpoena for the director of the state Department of Administration to turn over emails from McLaughlin, documents from the judicial branch and still within the state IT system. Republicans subsequently said they would defy that order.

The Select Committee on Judicial Transparency and Accountability met Friday afternoon to set the table for the week ahead. Committee chair Greg Hertz, a Polson Republican and former Speaker of the House, said the committee would move forward with its investigation and subpoena power but did not comment specifically on any upcoming reaction to the Supreme Court temporarily quashing their own subpoenas.

"The conflict of interest this situation presents is extraordinary," Hertz said. "No other citizen would have the audacity to claim that he or she gets to be the judge in his or her own case.

"This committee is a duly authorized investigative body of the Montana State Legislature and will proceed accordingly, expecting full compliance with its power to subpoena documents in support of its investigation," he added.

Democrats on the committee challenged its legitimacy Friday, calling it the culmination of a session-long attempt to smear the character of the courts. The committee has two Democratic members, while four are Republican.

“I take this job seriously, I take my position on this committee seriously. I am alarmed at its formation and stated goals after a session-long relentless attack on a necessarily nonpartisan and independent judiciary. It feels like a constitutional crisis, an attack on the separation of powers, and it undercuts the checks and balances that Montanans demand, expect and depend on from our government," House Minority Leader Kim Abbott, a Helena Democrat, said Friday.

House Majority Leader Sue Vinton, a Republican from Billings, disputed the Democrats' characterization of the committee's purpose, and said allegations that Republicans sought to smear the courts were baseless. 

Chief Justice Mike McGrath sought to temper the clash in a letter provided to the Montana State News Bureau to be delivered to House Speaker Wylie Galt and Senate President Mark Blasdel, along with the six members of the newly formed committee. In the letter, McGrath offers information about the Montana Judges Association that participated in the poll. 

"Although not the way I would have preferred to open a dialogue between our coordinate branches of government, I welcome the opportunity to provide you with information about how and under what circumstances the Judicial Branch engages with the legislative process on matters involving court operations," McGrath wrote. "The Judicial Branch does not involve itself in the mine run of legislation — only those matters that directly impact the manner in which our court system serves the people of Montana who elect each of us."

The Montana Judges Association, McGrath wrote, is entirely funded by dues contributed personally from its judicial members, hires a part-time lobbyist and and occasionally judges have testified before committees regarding legislation on judicial operations. The letter includes mention of six bills and one resolution on which judges were polled. The association opposed House bills 342, 355, 325 and 685, as well as SB 140. The association supported Senate Bill 175, which paused state contributions to the judges' retirement system, as well as House Joint Resolution 40, which would conduct an interim study of the Judicial Standards Commission. That resolution is scheduled for hearing in the House Judiciary Committee on Tuesday.

Yellowstone County District Court Judge Greg Todd has been that voice for the MJA on several bills this session.

Supreme Court Chief Justice Mike McGrath

Montana Supreme Court Chief Justice Mike McGrath.

The polling conducted within the association is not secret, McGrath continued; on the contrary, "the very purpose of the poll is to inform the Legislature of the judiciary's policy position on how the bill impacts the branch."

"Members of the Supreme Court do not participate in the poll for the reason that, if passed, the statute may come before the Court at a later time," he wrote.

McGrath maintained that polling by email is not an improper use of state resources, which is how the judicial branch conducts its internal business, including discussions related to cases, schedules or personnel matters.

In past sessions, the Legislative Audit Division would have been selected to carry out the investigation into such matters, McGrath wrote, a process the court would "gladly" cooperate with.

McGrath wrote the subpoenas issued for the justices and McLaughlin's work computer, hard drives and telephone are too broad and would capture confidential judicial communications off limits to disclosure.

"I invite you, however, to engage with us in a civil conversation about these matters should you have additional questions," he wrote. 

House Minority Leader Kim Abbott, who this week was named to the judicial investigation committee, said she hopes lawmakers will respect the Supreme Court's order.

"We haven't recently, but I hope we correct course on that," Abbott said. "We really do need to respect the separation of powers and constitutional checks and balances. It's just a fundamental constitutional requirement."

The select committee will meet again Monday to conduct business at 9 a.m.


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